Since the attacks of September 11, 2001, the war on terror has accelerated the internationalization of criminal law. A new actor in this process is the United Nations Security Council, which, to an increasing extent, shapes national criminal law through legally binding resolutions. This study seeks to clarify whether the Council, a (highly) political, unrepresentative body with no democratic legitimacy, has the authority to issue such criminal law measures.

Since the at­tacks of Septem­ber 11, 2001, the war on ter­ror has ac­cel­er­ated the in­ter­na­tion­al­iz­a­tion of crim­in­al law. A new act­or in this pro­cess is the United Na­tions Se­cur­ity Coun­cil, which, to an in­creas­ing ex­tent, shapes na­tion­al crim­in­al law through leg­ally bind­ing res­ol­u­tions and, in so do­ing, con­trib­utes to the in­ter­na­tion­al­iz­a­tion of crim­in­al law. A crit­ic­al ana­lys­is of these res­ol­u­tions is ur­gently needed be­cause it is doubt­ful wheth­er the Se­cur­ity Coun­cil, as a highly polit­ic­al, un­rep­res­ent­at­ive body with no demo­crat­ic le­git­im­acy, has the au­thor­ity to is­sue such crim­in­al law meas­ures.

Par­tic­u­larly in Res­ol­u­tions 1373 (2001) and 1540 (2004), the Coun­cil de­veloped le­gis­lat­ive meas­ures in the area of crim­in­al law and for the first time ob­lig­ated the then 192 Mem­ber States of the United Na­tions to in­cor­por­ate spe­cif­ic of­fenses in­to their na­tion­al crim­in­al law. Ac­cord­ing to Res­ol­u­tion 1373 (2001), for in­stance, all States must "crim­in­al­ize the wil­ful pro­vi­sion or col­lec­tion, by any means, dir­ectly or in­dir­ectly, of funds by their na­tion­als or in their ter­rit­or­ies with the in­ten­tion that the funds should be used, or in the know­ledge that they are to be used, in or­der to carry out ter­ror­ist acts." Fur­ther­more, the Coun­cil it­self im­poses pun­it­ive sanc­tions on in­di­vidu­als, groups, and or­gan­iz­a­tions. The Res­ol­u­tions 1267 (1999), 1333 (2000), and 1390 (2002) provide that all States must freeze and seize funds and oth­er fin­an­cial re­sources of per­sons who are lis­ted as sus­pec­ted ter­ror­ists on a so-called "black­list." They must also im­pose travel re­stric­tions on these per­sons. The list of sanc­tioned per­sons is pre­pared, man­aged, and reg­u­larly up­dated by a Sanc­tions Com­mit­tee es­tab­lished by the Coun­cil. Thus, the Coun­cil it­self cre­ated the pro­ced­ur­al struc­tures for im­pos­i­tion of the sanc­tions. Even though rep­res­ent­at­ives of pub­lic law have already been deal­ing with these res­ol­u­tions for some time now, the res­ol­u­tions have not yet been stud­ied with re­spect to their crim­in­al law con­tent.

Thus, the goal of this pro­ject is to provide a com­pre­hens­ive over­view of these res­ol­u­tions and to sub­ject them to a de­tailed crim­in­al law ana­lys­is. The pro­ject will then ad­dress the is­sue of wheth­er the Se­cur­ity Coun­cil has the ne­ces­sary com­pet­ence as defined by Chapter VII of the Charter of the United Na­tions to take ac­tion. This is doubt­ful be­cause, ac­cord­ing to the clas­sic view, the Coun­cil, a purely ex­ec­ut­ive or­gan, is now also claim­ing le­gis­lat­ive and ju­di­cial au­thor­ity in the area of crim­in­al law. In light of the Coun­cil’s in­creas­ing ex­er­cise of sov­er­eign-like rights, the ques­tion arises as to wheth­er a great­er de­gree of demo­crat­ic le­git­im­acy on the in­ter­na­tion­al level – and es­pe­cially with­in the United Na­tions – should be re­quired and how it should be achieved.

The meth­od­o­logy con­sists of an eval­u­ation of the res­ol­u­tions them­selves as well as of the rel­ev­ant aca­dem­ic lit­er­at­ure. This ana­lys­is takes place in three steps. In the first step, the meas­ures en­gaged in by the Coun­cil are presen­ted and ana­lyzed with re­spect to their re­la­tion­ship to crim­in­al law. In a second step, the com­pet­ence of the Coun­cil in light of Chapter VII of the Charter of the United Na­tions is ex­amined. Fi­nally, the third step in­quires as to the ex­ist­ence of grounds on the in­ter­na­tion­al level that would lend demo­crat­ic le­git­im­acy to the Coun­cil’s ac­tions.

On the basis of the schol­arly ana­lyses to date, it ap­pears doubt­ful wheth­er the Coun­cil is en­titled, in ac­cord­ance with Chapter VII of the Charter of the United Na­tions, to the com­pet­ence it claims. The Se­cur­ity Coun­cil seems clearly to have over­stepped its com­pet­ences – both ho­ri­zont­ally as well as ver­tic­ally. Be­cause a suf­fi­cient de­gree of demo­crat­ic le­git­im­acy on an in­ter­na­tion­al level ap­pears to be un­likely in the short term, the ac­tions of the Coun­cil in the area of crim­in­al law should be re­stric­ted in the fu­ture.